402 U.S.

1000
91 S.Ct. 2175
29 L.Ed.2d 166

Catherine TARVER
v.
Sidney SMITH, Secretary, etc.
No. 6106.

Supreme Court of the United States

May 24, 1971

On petition for writ of certiorari to the Supreme Court of Washington.

The petition for writ of certiorari is denied.
Mr. Justice DOUGLAS, dissenting.

The ability of the government and private agencies to gather, retain, and
catalogue information on anyone for their unfettered use raises problems
concerning the privacy and dignity of individuals.1 Public and private agencies
are storing more and more data. 'If your name is not in the records of at least
one credit bureau, it doesn't mean that you don't rate. What it does mean is that
you are either under twenty-one or dead.'2

A file may show that an individual was arrested. But will it show the arrest was
unconstitutional because it was solely for purposes of investigation? Or that the
charges were dropped? Or that a jury acquitted him?

Other 'facts' may be in a file. Did he vote for Henry Wallace? Was he cited by
HUAC? Is he subversive? Did he ever belong to any subversive organizations?

Private files amass similar irrelevancies and subjective information. Is he well

regarded in his neighborhood as to character and habits? Does he have domestic
difficulties? Is he 'slow' in paying his bills? The problems of a computerized
society3 with large data banks are immense. Who should have access to the

files on an individual? For what purposes should access be allowed? Should an

individual be informed each time information is passed on to new parties? How
long should information be retained? What mechanisms ought there be for
correcting factual errors?
5

This case presents the latter issue. A caseworker has prepared a highly critical
report on petitioner setting forth in detail factual allegations and accusing
petitioner of child neglect. The report recommends petitioner be permanently
deprived of the custody of her children. Custody was temporarily placed in
juvenile court because petitioner was hospitalized. Subsequently a hearing in
juvenile court was held and petitioner was exonerated and retained custody of
her children. But the critical report which petitioner alleges is falseremains in
the files with the Department of Social and Health Services of the State of
Washington.

Not surprisingly, petitioner would like the allegedly false information removed
from those files. But her efforts to obtain a hearing to correct the information
have failed.

The State says that petitioner's file is 'confidential and privileged' and under
current state law the file may only be disclosed 'for purposes directly connected
with the administration of public assistance and specific investigatory purposes
by legislative committees and properly authorized bodies.' Just how many
people and agencies this includes is unclear. The only thing perfectly clear from
this record is that petitioner has no rights under state law to a hearing to correct
the reports even if they are total lies. And it appears petitioner will never be
informed prior to transmittal of her file to the various 'authorized' groups.

The State contends that petitioner will suffer no harm from having the material
in her files. We are told everyone will know the report is only an opinion; the
decree of the juvenile court will be included; and the file will be treated
confidentially. While of course we can not know if the information is false and
can not tell which and how many uses will be made of the file, it is apparent
that petitioner does raise some serious questions concerning its use.
Participation 'in the new Work-Incentive Programs is initiated by a referral by
respondent's department of, among others, persons who are 'appropriate for
referral.' R.C.W. 74.22.020; 74.23.040. Those who are referred receive
substantial training benefits as well as increased case benefits. R.C.W.
74.22.050, .060; R.C.W. 74.23.060, .070. Similarly, the availability of sheltered
workshop programs depends upon a determination by the respondent's
department that the subject, if a 'disadvantaged person,' 'can reasonably be
expected to benefit from, or in his best interests reasonably requires' such a

program. R.C.W. 28A.10.080(2).' The only answer that respondent gives to this
is that any 'information transmitted to the Employment Security Department
under the Work Incentive Program is for the benefit of the recipient.' How
petitioner would benefit from the transmission of the allegedly false material
we are not told.
9

The Washington State public assistance programs are designed to receive

federal assistance whenever federal funds are available. Various provisions in
the appropriate title of the Revised Code of Washington dealing with public
assistance refer to conformity with and primacy of federal law. E. g., R.C.W.
74.04.055 (if more than one construction possibly favor that 'most likely to
satisfy federal laws'); R.C.W. 74.23.005 ('The legislature hereby expresses its
intention to comply with the requirements under the federal social security act,
as amended, creating a work incentive program' for mothers receiving Aid to
Families with Dependent Children); R.C.W. 74.23.900 (if any part of the
chapter conflicts with federal law it is to that extent inoperative). The record in
this case is not clear as to which types of public assistance petitioner is
receiving. Prior to the temporary unsuccessful attempt to remove her children
from her custody she was receiving AFDC benefits. From the references in the
briefs to eligibility for the AFDC Work Incentive Program it would appear that
she is now again receiving AFDC benefits.

10

When federal funds are used then standards are to be shaped and tested
federally. Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307;
Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d
1313; Rosado v. Wyman, 397 U.S. 397, 427, 90 S.Ct. 1207, 25 L.Ed.2d 442
(concurring opinion).

11

If meanwhile she was denied a fair hearing under state law, an important
question of procedural due process is raised under the Fourteenth Amendment.
For petitioner's right to continued assistancean important property interest
cannot be reduced or terminated without notice and an opportunity to be heard.
Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d
349.

12

If petitioner was at the time receiving federal assistance then under HEW
Regulations, she was entitled to a fair hearing:

13

The Department's regulations require that provision be made for granting a fair
hearing:

14

'* * * to any individual requesting a hearing because his claim for financial or
medical assistance is denied, or is not acted upon with reasonable promptness,
or because he is aggrieved by any other agency action affecting receipt,
suspension, reduction, or termination of such assistance or by agency policy as
it affects his situation [45 CFR 205.10(a)(3), emphasis added].'

15

As the Solicitor General says in his brief, filed at our request:

16

'One may say, quite simply, that the report which petitioner challenges
threatens receipt of AFDC payments by threatening to deprive petitioner of her
children, on which her receipt of AFDC benefits depends. One of the federal
requirements for a state plan for AFDC is that it must:

17

'(16) provide that where the State agency has reason to believe that the home in
which a relative and child receiving aid reside is unsuitable for the child
because of the neglect, abuse, or exploitation of such child it shall bring such
condition to the attention of the appropriate court or law enforcement agencies
in the State, providing such data with respect to the situation it may have [42
U.S.C. 602(a)(16) (Supp. IV)].

18

'If any question were now to arise as to the suitability of the home for the
children, the prior report might well have an effect on referral of the case to the
courts and action by the courts, notwithstanding the 1967 decision of the
Juvenile Court. Thus, the report retains a constant potential effect on petitioner's
custody of her children and thereby on her receipt of assistance.'

19

We cannot be sure of the exact posture of this case; but whether or not the
claim at the time was federally funded, a question of national importance is
presented. Accordingly I would grant the petition for certiorari.

20

Mr. Justice BRENNAN is of the opinion that certiorari should be granted.

Law reviews have been devoting increasing attention to the problem. Recently
two total issues have been devoted to the legal problems. See 15
U.C.L.A.L.Rev. 1374 and 31 Law & Contemp. Prob. 251. See also Symposium,
53 Minn.L.Rev. 211; Note, Privacy and Efficient Government: Proposals for a
National Data Center, 82 Harv.L.Rev. 400; Freed, A Legal Structure for a
National Medical Data Center, 49 Bos.U.L.Rev. 79; Miller, Personal Privacy in
the Computer Age, 67 Mich.L.Rev. 1089.

2
3

II. Black, Buy Now, Pay Later 37 (1961).

'* * * the computer can also be an agent of oppression, if, for example, its
fantastic memory is used to place indelibly on record all the events in a man's
life, all his mistakes and weaknesses, precluding all hope of their effacement,
every stimulating possibility of a new chance in life.' Prebisch, Change and
Development, Latin America's Great Task, p. 209 (1970).